E312 

.5 

.E92 





THE SIXTY-SECOND CONGRESS 

THIRD SESSION. 



IN RE THE CLAIM OF THE ESTATE OP 
GENERAL WASHINGTON 

AGAINST 

THE UNITED STATES 

for 3051 Acres of Land Wrongfully Granted by 
It to Other Purties. 



Argument Before the Cotninittee of Public 

Lands as to the Form and Substance 

of the Relief Proper to be Granted 

by Bill to be Repealed. 



Kelson W. Evans, 

Of Portsmouth, Ohio ; 

Greenlee D. Letcher^ 
Of Lexington, Virginia ; 

Counsel for the Estate. 



K". B. TOOTHAKKR, Law Printer, 79-89 N. Third St., Columbus, O. 



0. OF % 

JUN 17 1915 



V. 



SIXTY-SECOND CONGRESS 

THIRD SESSION. 



In the Matter of House Bill No. , for the 

Kelief of the Estate of General George 
Washington. 



Argument of Counsel for the Estate as to the Proper 
Findings and Report of the Committee in Charge 
of the Bill, Upon the Evidence and the Law 
Governing the Case. 



Col. Robert E. Lee, .Jr., of Fairfax county, Virginia, 
was appointed administrator de bonis non of the 
estate of Gen. George Wa-shington, the first President 
of the United States, on October 29, 1907, and on 
the fifth day of December, 1907, this claim was pre- 
sented to Congress, both to the Senate and the House. 
In the Senate, no action has been taken on the bill, 
except to refer it to the committee on claims, though 
it has been introduced in the sixtieth, sixty-first and 
sixty-second Congress, in both houses. In the sixty- 
first Congress, it was referred to the committee on 
private lands of the House, and that committee re- 



ported unanimously that the facts on which the claim 
was based were true, and recommended the satisfac- 
tion of the claim in public lands. 

In the present Congress, Eepresentative Flood, of 
Virginia, introduced a bill for the satisfaction of the 
claim in public lands, and there have been hearings 
on it, but no report. 

This claim arose in the Northwest Territory, in 
what is now the State of Ohio. That State has a prac- 
tice in its courts for a party to file a request for find- 
ings of facts and conclusions of law, on a case pend- 
ing, and that practice has proven very useful, and has 
been found to greatly aid the administration of 
justice. Following up such an idea, a request and 
suggestion of that character was made in the sixty- 
first Congress, and the same, but in a different form, 
is made here. This is done to aid the committee and 
to point out under the facts, the adjudicated cases, 
and the precedents of Congress, the only report which, 
under the facts and the law, in justice to the estate 
of Gen. Washington and in justice to the Congress of 
the United States, can be made. 

The Facts. 

The facts recited in the statement of Col. Robert 
E. Lee, Jr., administrator de bonis non of the estate 
of Gen. George Washington, appointed by the Fairfax 
Circuit Court, Virginia, on October 29, 1907, accom- 
panying the bill, are correct and true, and are all 
matters of record in the public records of the United 



states in its General Land Office; in the land office 
of the State of Virginia, at Richmond ; in the Fairfax 
county (Va.) records; in the recoi'ds of the Virginia 
legislature; and in the records of deeds of Clermont 
and Hamilton counties, Ohio. Where any documents 
constituting public records have been referred to, 
copies have been furnished the committee and it has 
used tlieni in the preparation of this report. 

All the matters furnished the committee, except the 
present value of the lands in question, are matters of 
public record in the United States and in the States 
of Virginia and Ohio, as to which there can be no con- 
troversy of any kind. 

All the matters set forth in the j)rinted records and 
arguments furnished the committee are true. 

They occurred at a time when the owing of this 
claim was not contemplated. 

First. At the close of the Revolutionary war, Gen- 
eral Washington was the owner of two land warrants, 
one for 3000 acres and another for 100 acres, both of 
which were, by their terms, locatable on the lands 
of Virginia northwest of the Ohio river. 

The 3000-acre warrant was issued to Capt. John 
Rootes, of Virginia, in 1763, for services in the 
French and Indian war, by Lord Dunmore. General 
Washington purchased this warrant on the fourteenth 
of February, 1774, and took an assignment of it. 
He held it till December 3, 1784, when he requested 
the General Assembly of the State of Virginia to issue 
him a continental warrant for it. which that bodv did 



by joint resolution; and a new warrant to him as as- 
signee was issued by the Virginia land office February 
14, 1785. 

The General Assembly of the State of Virginia, 
in its cession of the Northwest Territory to the 
United States in October, 1783, reserved the right 
to designate the beneficiaries of the Virginia Military 
Eeservation, by general laws or specific resolutions, 
and took that course in regard to General Washing- 
ton. That right of Virginia General Assembly has 
never been questioned, and it has been exercised by 
special i-esolution in cases too numerous to mention. 

The Thomas Cope warrant for 100 acres was pur- 
chased by General Washington after the close of the 
Revolutionary war. He gave these two warrants 
into the hands of Col. John O'Bannon, formerly of 
Richmond, Va., who went to Kentucky in the sum- 
mer of 1787, to make locations of these and other 
warrants placed in his hands. Upon the larger war- 
rant, on January 17, 1778, he entered 839 acres in 
what is now Franklin township, Clermont county, 
Ohio, in entry No. 1650. On May 13, 1788, he entered 
1235 acres on the same warrant on the east bank of 
the Little Miami river in what is now Miami town- 
ship, Clei'mont county, Ohio. On May 12, 1788, 
he entered 936 acres, the remainder of the 3000-acre 
warrant and 51 acres on the Cope warrant, on 977 
acres of land, 848 acres of which now lie in Union 
township, Clermont county, Ohio, and 129 acres of 
which lie in Anderson township, Hamilton county, 
Ohio. 



On April 4, 1788, entry No. 1650 was surveyed, and 
on May 27, 1788, the entry No. 1765, for 1235 acres, 
was surveyed. On May 26, 1788, the 977 acres in the 
two counties of Clermont and Hamilton, No. 1775, 
was surveyed. These three entries and surveys were 
made in the name of General Washington and re- 
corded in the survey boobs of Col. Richard C. Ander- 
son, surveyor of the district, which books are now in 
the possession of the United States in the General 
Land Office. 

The original surveys, made at the dates named, 
have recently been discovered to be in existence, and 
are now in the hands of Mr. Lawrence Washington, 
at the Library of Congress in Washington, D. C. 

The surveys were, with the warrant, by mistake, 
returned to the land office at Richmond, Va., and a 
grant on each of the three surveys from the Governor 
of Virginia to General Washington was issued on De- 
cember 1, 1790. General Washington was under the 
impression that the lands in the Virginia military 
district of Ohio having been reserved by Virginia, the 
surveys should be returned to the land office of that 
state, and it should issue the grants. 

Notwithstanding the fact that he, as President of 
the United States, had signed the act of August 10, 
1790, he continued under this impression as late as 
July ."^O, 1798, when he wrote to Col. Richard C. An- 
derson in regard to these surveys. That view was 
held by the owners of about 100,000 acres more of the 
same lands, who also procured grants from Virginia. 



■6 

From August 10, 1790, until March 2, 1807, there 
grew up a wrongful practice of making second loca- 
tions over first locations. The result was that until 
a first location was patented it was in constant jeop- 
ardy. 

Congress, in the act of May 13, 1800 (vol. 2, p. 80), 
undertook to remedy this abuse in part, hut the prac- 
tice continued. General Washington had notice in 
the winter of 1798 that he was in danger from a sec- 
ond location on his lands. On the thirtieth of July, 
1798, he wrote Col. Richard C. Anderson, the surveyor 
of the Virginia militai*y district in Ohio, that he was 
apprehensive of this and stated that he regarded his 
title as perfect and would, if necessary, contest for 
it in the courts. Colonel Anderson replied to him 
September 5, 1798; assured him that his title was 
good, and had not up to that time been disturbed. 
He promised to notify him of any attempts to attack 
it, and made sundry suggestions. 

Copies of the letter which General Washington 
sent Col. Anderson, preserved by him, and Col. Ander- 
son's reply thereto are preserved in the Congressional 
Library. 

General Washington made his will on July 9, 1799, 
and at that time was under the belief that his title to 
this land was unassailable. With his will, he pre- 
pared an inventoi*y of his estate and sundry notes de- 
scriptive of his property for his executors. In those 
papers filed with his will, when offered for probate, 
he inventoried these lands, fixed a value on them. 



and they were to be disposed of as a part of his resid- 
uary estate. 

He valued the lands, 3051 acres, at |5 per acre as 
the land then stood in the original timber, and every 
one who has had occasion to consider that appraise- 
ment, regards it as reasonable and just. 

No attempt was made to locate upon his lands until 
February 2fi. 1806, when Joseph Kerr, a deputy 
surveyor of the military district, made three entries, 
Nos. 4847, 4848 and 4882, covering completely and 
exactly General Washington's entries, Nos. 16.50, 1765 
and 1775, respectively. 

Tt seems that notice of this hostile action reached 
Judge Bushrod Washington, one of General Wash- 
ington's executors, for, on the fourth of March, 1806, 
he wrote to the register of the Virginia land office 
at Richmond, asking for the warrants and papers 
connected with the title to those three tracts. This 
letter was carried by Chief Justice Marshall in per- 
son. On IMarch 14. 1806, the executors of General 
Washington. .Judge Bushrod Washington and Golonel 
Lawrence Lewis, his nephews, presented a petition to 
Gongress. asking it to confirm their title to these 
three surveys. The matter went over to the second 
session, at which time it was discussed in the com- 
mittee of the whole and a bill introduced and passed, 
March 3, 1807, vol. 2. page 437, United States Statut-s 
at Large. 

This act was in the form of a general law and was 
intended to relieve all other persons whose lands 



8 

were in the same situation as those of General Wash- 
ington ; but it was enacted expressly to give title to 
these particular lands belonging to the estate of Gen- 
eral Washington. 

The presentation of the petition by the executors 
of General Washington for relief called attention to 
the great evil of second locators undertaking to seize 
and appropriate previous locations, and as a conse- 
quence Congress enacted the famous proviso of March 
2, 1807 (vol. 2, p. 424), which was intended to forever 
cut off the practice of making second locations. This 
proviso was re-enacted ten times subsequently, as 
shown in the administrators' brief, the last time, 
February 20, 1850. 

In passing the act of March 2, 1807, to prevent sec- 
ond locations, and that of March 3, 1807, to relieve 
the estate of General Washington, the ninth Con- 
gress thought it had forever put an end to the evil 
of second locations, and it did as to all future loca- 
tions. It also considered it had secured the lands 
of General Washington to his estate, but Kerr, .the 
deputy sui'veyor, was not to be thwarted. On May 
20, 1806, he covered General Washington's s-urvey No. 
1650, for 839 acres, by one No. 4847, in the name of 
Gen. John Neville. He covei'ed General Washing- 
ton's survey No. 1765 with another in the name of 
Gen. John Neville, No. 4848, and he covered General 
Washington's survey No. 1775 with another in the 
name of Maj. Henry Massie, which bore the number 
4862. 



9 

In making these three new surveys, appropriating 
all three of General Washington's surveys, he used 
the field notes of the latter. The two Neville surveys 
were made in the name of Gen. John Neville, who 
had departed this life July 20, 1803. Joseph Kerr 
procured the patents to the two Neville surveys 4847 
and 4848 to issue in the name of Presley Neville and 
Amelia Craig, son and daughter of Gen. John Neville, 
on April 30, 1807, and on January 8, 1808, he pro- 
cured a patent to issue to Maj. Henry Massie on his 
survey 4862, which covered General Washington's 
survey No. 1775. 

It will be observed that while the act of March 3, 
1807, gave the executors of General Washington five 
years from March 23, 1807, in which to return their 
surveys and receive patents, the executors were cut 
off from so doing on two of the surveys on April 30, 
1807, and on the third one on January 8, 1808. 

Thus, while the proviso of March 2, 1807, saved all 
first locations after its date until the close of the dis- 
trict on December 31, 1851, the estate of General 
Washington, by the improper action of officers of the 
United States, in recognizing Kerr's entries and sur- 
veys, in issuing the two patents to Gen. John Neville's 
devisees and the one to Maj. Massie, entirely defeated 
the purpose of the ninth Congress in passing the act 
of March 3, 1807, to give General Washington's ex- 
ecutors the title to the lands he had surveyed in 
1788; and while the threatened loss of his estate, 
which afterwards became actual, saved the people of 



10 

the Virginia military district in Ohio from second 
locations, at the same time General Washington's 
estate lost the lands he had located in Ohio and which 
he and his executoi's had held peaceably for eighteen 
years. 

The intention of the act of March 3, 1807 failed. 
Congress was under the impression in passing that 
act that no adverse claim to the completion of Gen- 
eral Washington's title existed and had there been 
none, his executors would have completed it, as was 
intended by the act. What we claim is this, that 
Congress, having undertaken to make General Wash- 
ington's title good to these lands, and that attempt 
having failed, the present Congress is bound to under- 
take and perform what failed under the action of a 
former Congress. Nullum Tempus occurrit repuh- 
lica. If this obligation was assumed and undertaken 
by the Government, it is bound to carry it out with- 
out reference to the passage of time. 

The abstract of the title furnished this committee 
shows that in 1811 Joseph Kerr, the deputy surveyor, 
who appi'opriated General Washington's lands, pur- 
chased the two Neville surveys, Nos. 4847 and 4848, 
of his heirs and afterwards sold and conveyed them 
to other parties. Maj. Henry Massie sold and con- 
veyed his survey, 4862, covering General Washing- 
ton's survey No. 1775, and there is a complete chain 
of title from Kerr and Massie to the present owners 
of the lands. 

The committee will find that the lands out of which 
General Washington's surveys were made were ac- 



11 

cepted from Virginia by the United States on March 
1, 1784, in trust for the satisfaction of Virginia mil- 
iitary bounty-land claims of the same character as 
those held by General Washington, in his Eootes war- 
rant for 3000 acres. No. 3753, and in Cope warrant 
for 100 acres, No. 3670. 

General Washington himself was a major general 
of the State of Virginia, and as such entitled to 
23,333.33 acres of Virginia military continental 
bounty land, but he had jn-eviously refused to ac- 
cept any compensation for his services as General of 
the Army of the United States, and hence he 
could receive no bounty lands from the State of Vir- 
ginia, but he could ask, and did ask lands for the like 
claims which he had purchased, and his application 
to the General Assembly of Virginia, 1784, and his 
letter to Col. Anderson, 1798, disclose that he had the 
utmost faith in his claim and was pereistent in its 
being satisfied. Had he but lived a few yeare longer 
had been permitted to attend to hi.s business, we would 
not have been here today asking this relief. 

When this trust was created, no time was fixed in 
the contract between Virginia and the United States 
in which its execution was to be completed, and none 
has ever been fixed subsequently. 

That this obligation of the United States to satisfy 
this claim was recognized and affirmed in the first 
clause of Article VI of the Federal Constitution. 

Because of the language of the first clause of 
Article VI of the Federal Constitution, this claim 



12 

was not subject to and could not be made subject to 
any statute of limitations. 

The clause in question reads, "all debts contracted 
and engagements into, before the adoption of this 
Constitution, shall be as valid against the United 
States, under this Constitution, as under the Confed- 
eration." 

This particular claim was one of those contem- 
plated by and included in the above language, and 
the effect was the claim being once recognized in the 
Constitution and required to be paid, could not be 
barred by any statute of Congress, though the effort 
was tried by the act of March 3, 1899, and the lan- 
guage used for the purpose was inserted by Senator 
Cockerel of Missouri, and was the first time in the 
history of the government when the Federal Consti- 
tution was sought to be i-epealed by a simple act of 
Congress. Senator Cockerel had overlooked the fact 
that a provision of the Constitution is as much in 
full force every day as it was on April 30, 1789, 
when President Washington was inaugurated. Un- 
der that provision, the claim could not be barred by 
any act of Congress and the claim could be presented 
and insisted on as long as the evidence to sustain it 
could be preserved and presented. 

The first Congress of the United States in the act 
of August 10, 1790, accepted this trust and undertook 
its performance. 

In the compact between the United States and the 
State of Virginia, expressed in the resolution of the 



13 

General Assembly of Virginia of date Apriil 12, 1852 
(Virginia, acts of 1852, p. 318), and in the act of Con- 
gress of August 81, 1852 (vol. 10, p. 143), known as 
the "scrip law," and in the resolution of the General 
Assembly of Virginia of date December 6, 1852 (Vir- 
ginia, acts of 1852, p. 357), accepting the scrip law, 
there was no limitation on this obligation. There 
has been no further compact between December 6, 
1852, and the present time, and consequently no lim- 
itation of any kind exists to the demand for the allow- 
ance of this claim. It is an obligation, a part of the 
]tublic debt of the United states and, as such, gov- 
erned by the provisions of the first clause of the sixth 
article of the Constitution, and by section 4, of the 
fourteenth ameudment, and that claimants have the 
right to demand its satisfaction and payment, so long- 
as there is any representative to demand its payment, 
and so long as the evidence can be procured to estab- 
lish it. 

Laches. 

Considerable has been said about laches to this 
claim, but any one who has read and considered 
Article VI of the Constitution as affecting this claim, 
will readily perceive that no laches can be applied 
to it. Article VI of the Constitution recognizes the 
claim and directs its payment and this clause having 
this force and effect is as much law to day as it was 
the day our Government started, April 30, 1789. 

Moreover, the claim was, on the adoption of the 
Fourteenth Ajnendment in 1868, a part of the public 



14 

debt of the United States, and such can never be 
questioned. Hence, this claim is entrenched in the 
Constitution in two places and no doctrine of laches 
can apply in a case of that kind. The situation of 
parties have not changed and no rights of third per- 
sons have intervened. 

The doctrine of laches has and can have no appli- 
cation in this case. The doctrine does not apply be- 
tween the original parties, or where their situations 
have not changed, as herein. It can not be pleaded 
against the government. Nullum tempus occurrit 
reipublicoe. By correlation the individual can not 
be limited in his right to present a claim against the 
Government, unless the limitation was embraced in 
the act creating the claim, which is not this case. 

The doctrine of laches is only applied to prevent 
the claimant from doing a wrong and in this case no 
wrong is done by the cestui que trust, for demanding 
the trust fund, or its equivalent, from the trustee. 
The United States was the trustee and held the trust 
fund, in land, to satisfy the claim. It wrongfully 
permitted its officers to turn the trust fund, pledged 
by the act of March 3, 1807, to the executors of Gen- 
eral Washington, over to pei*sons not entitled to it, 
in defiance of the pledge of the act last referred to. 
Had the proper officers of the United States said to 
Surveyor Kerr, or Neville and Massie, after the pas- 
sage of the act of March 3, 1807, "You must withdraw 
your warrants, entries and surveys from the Wash- 
ington lands," and compelled them to do so, or had 



15 

they done so voluntarily, then the act of March 3, 
1807, with its ten extensions of time, to January 1, 
1852, would have secured these lands to the Wash- 
ington estate. 

No statute of limitations or doctrine of laches can 
operate between trustee and cestui que trust, as was 
this case. 

The Walton Case. 

The act of May 18, 1826, (Vol. 6, U. S. Statutes, 
page 243) was for the relief of James Walcott and 
Mary, his wife. Congress gave them $1920 for a sec- 
tion of land which had been set apart for them by an 
Indian treaty of October 6, 1818, which the United 
States afterwards seized and sold, by mistake. 

The Governor McArthur Case. 

In the early history of the Virginia military dis- 
trict of Ohio, there was a controversy as to its west- 
ern line between the sources of the two rivers, the 
Scioto and Little Miami. The first line established 
was that of Ludlow, but afterwards the Robert's line, 
north of the Greenville treaty line, was established. 
There was quite an extent of territory between the 
two lines. 

The surveyor of the United States had assumed the 
Ludlow line to be the correct one and had surveyed 
the land west of it into townships and sections and 
portions of it had been offered for sale and sold by 



16 

the United States to innocent purchasers, who had 
entered on the lands and made improvements. 

A number of the holders of Virginia military 
bounty-land warrants of the same character of those 
of General Washington had made locations upon 
these warrants on the very same lands which the 
United States had sold as government land, and the 
question was at once raised as to the character of the 
land. Was it in the Virginia military reservation 
or not? 

There were 14,000 acres in seven surveys, the war- 
rants for which had at one time belonged to General 
Duncan McArthur, once a member of Congress and 
later a governor of Ohio. 

A case was made up to determine the matter, and 
it was taken to the Supreme Court of the United 
States. The decision there is found in Doddridge v. 
Thompson (9 Wheaton, 469), and the decision made 
May 16, 1824, was in favor of the Virginia military 
warrant locators. The United States was left in the 
position of having sold the lands of the Virginia res- 
ervation to innocent purchasers who had gone into 
possession and made improvements. The Virginia 
warrant claimants had never taken possession under 
their claims, and in making their entries and surveys, 
had knowingly, intentionally and purposely made 
them on lands that had been sold by the Government 
and wei*e in possession of the purchasers. Several 
were entered and surveyed on lands already patented. 
As to General Washington, he was the first locator on 
his 3051 acres and remained such for eighteen years. 



17 

On May 26, 18:ii, Coiijriess passed an act to ascer- 
tain the nmuber of acres of lands between Ludlow's 
and Kobert's lines located on Virginia millitai'y war- 
rants, and on what terms the holders of the Virginia 
warrant locations would relinquish their claims (Vol. 
4, p. 189). A committee of appraisement was se- 
lected by the president, and the lands were all ap- 
praised without improvements, as in virgin forest, 
and (he appraisement returned. The holders of the 
locations agreed to take the amount of appraisement, 
with interest from the presentation of their respective 
claims, and the act of May 26, 1830, (Vol. 4, p. 405), 
was passed to pay these claims. 

On February 12, 1831, (Vol. 4, p. 440) another 
claim was recognized and a bill passed to satisfy it. 
The two bills at the date of their passage carried an 
appropriation of |84,445.97. 

The act of May 26, 1824, was passed ten days after 
the decision of Doddridge against Thompson, 4 
Wheaton, 469. It refers to certain principles an- 
nounced by Chief Justice Marshall, in the decision. 
Those principles are not in the reported case, but will 
be found in the House Document, First Session, Nine- 
teenth Congress, Report 14.5,. House of Representa- 
tives. This rei)ort was made in pursuance of the act 
of May 24, 1824, supra, and established the principle 
that in cases where lands already located and set 
apart for the satisfaction of particular warrants, had 
been improperly appropriated by the United States 
through the unlawful and mistaken acts of its officers. 



18 

they should be paid for in money, valued without im- 
provements, as in the original timber. This was the 
principle announced by Chief Justice Marshall. 

Interest was to be allowed on the valuations as of 
the date when the claims were presented. In the Gen. 
Duncan McArthur case, that date was March 4, 1825. 
In this case it is December 5, 1907. The two bills of 
1830 and 1831 had as principal sums ,f62,515.25 and 
11765.68, respectively and when the appropriations 
were made interest had accrued to the amount of 
120,165.04 more, on the two appropriations. 

Col. Robert E. Lee, Jr., the administrator, in pre- 
sentinsj this claim as the personal representative of 
Gen. George Washington, has followed the precedents 
established by the acts of 1824, 1830 and 1831, and the 
committee's report to Congress last referred to. He 
has had the land valued, as without improvements 
and as standing in the original timber by three ju- 
dicious, disinterested freeholders of the vicinage, ex- 
perts in land values, men of hiffh professional, social 
and business standing, Mr. William R. Fee, vice pres- 
ident of the Citizen's National Bank of IMilford. Ohio, 
a village lying between the two Washington surveys, 
on the Little Miami river, and president of the Ohio 
Valley Rank of Portsmouth, Ohio; Judge Frank 
Davis, a bank director of Batavia, Ohio, and now a 
common pleas judge of the state, and Mr. John 
Nichols, a resident of Anderson township, Hamilton 
county, Ohio, near where the Washington survey 1775 
lies, a gentleman eminent in the legal profession at 
Cincinnati, Ohio. These gentlemen were as suitable 
for the purpose as could have been selected by the 
United States. 



19 

In our opinion, the case of the estate of General 
Washington is a much stronger one than those of the 
Mrginia locators between the Ludlow and Roberts' 
lines. There was never any question as to the lands 
located upon being a part of the Virginia military 
district of Ohio. Congress affirmed and approved 
his locations in the act of August 10, 1790, (Vol. 1, 
p. 182) ; again in the act of May 13, 1800, (Vol. 2, 
p. SO) ; and in the act of March 3, 1807. (Vol. 2, p. 
437), and in the latter act undertook to make them 
absolutely good. 

The Continental Congress provided a compensation 
of ij^GOOO per year to General Washington as com- 
mander in chief of its armies, which would have 
amount<'d to .f48,000. General Washington declined 
any compeiisation and thus left in the treasury of the 
struggling government |18,000. He also declined to 
take and use the bounty land provided by the State of 
Vii'ginia and the satisfaction of which had been as- 
sumed by the United States. This amounted to 23,- 
333.33 acres and the right to immediate entry of 
which was estimated by the committee on claims in 
1909, to be worth |233,333.33. Then General Wash- 
ington gave to the treasury of his country money and 
lauds to the value of |281,3.33..33 which was 53 per 
centum of the estate of which he died seized. 

At any time after the enactment of the law of May 
2G, 1824, the personal representative of General 
Washington could properly ask the benefit of the pre- 
cedent established by that act and he has now done 
so. He could have returned the surveys at any time 
until January 1, 1852, and thus established a claim, 
but after the act last referred to he had the option 
to ask for satisfaction in money. The committee 



20 

should regard the act of March 3, 1807, and its several 
extensions and renewals, as equivalent in this case, 
to a bond of the United States, held by the personal 
representative of General Washington and which 
must be redeemed. 

The United States received the land to pay this 
debt from the State of Virginia, but used it to pay 
other debts. It received from General Washington 
gifts to the value of $281,333.33. It can never repay 
the debt of gratitude it owes him for his services ren- 
dered in the Revolutionary war and as its first Pres- 
ident, but it can pay the debt it owes his estate for 
the diminution of his private fortune and not be out 
a dollar. 

I may be regarded as erratic, but in my view, and 
in view of the provision of the Constitution cited and 
its operation and effect, this claim is as good, fresh, 
and just as it was when the Federal Constitution of 
1787 inserted the language quoted in the instrument. 
Hence, this claim and all of its class are of perpetual 
obligation and when presented, sustained by the 
proper evidence, shoiild and must be paid. A claim 
recognized by the Constitution and by it required to 
be paid, can never become stale. 

All will admit that Washington was the greatest 
citizen of this nation and yet his personal representa- 
tive, himself, a direct descendant of the wife of Gen- 
eral Washington, has been waiting on Congress for 
action on this claim ever since December 5, 1907, and 
no action has been taken. 

Does Congress mean to pay this claim or not? It 
has been pending nearly five years and no action on it 
except the report of a committee in the expiring hours 
of the 61st Congress. Now, the facts of this claim 



21 

are all of record and none of them can be controverted 
or gainsaid, not in a thousand years. 

Under the precedents established under the decis- 
ions of the Supreme Court, Doddridge vs. Thompson, 
4 Wheaton, 4G9, and Jackson vs. Clark, 1 Peters, 666, 
and the acts of Congress of March 26, 1830, Vol. 4, 
405, and Februai'y 12, 1831, Vol. 4, 440, the personal 
representative of General Washington is entitled to 
be paid for these lands in money. That right has 
been fixed and settled by the two decisions of the Su- 
preme Court before recited and the two acts of Con- 
gress before given, and surely the estate of our First 
President ought to be treated as well as a member of 
the lower house of Congress, or the governor of a 
state. The question is, what should the measure of 
damages be? It should be the value of the land in 
question as of the last day he could call on the United 
States to give him a patent for the land. That last 
day was December 31, 18.">1. How can we find the 
value as of that day? 

The land was worth |5 per acre, or $15,255 on July 
9, 1799. That was General Washington's own ap- 
praisement, afterward accepted and approved by the 
Probate Court of Fairfax county, Virginia, in 1800. 
Then this land was appraised on October 1, 1907, by 
three of the best appraisers who could be found, and 
they fixed it at .f 100 per acre, an increase of $95 per 
acre in a period of 108 years. That would be an in- 
crease of 12683.66 a year for 108 years. For the 
period from 1799 to December 31, 1851, would be a 
period of 52 years at |2683.66 per year would be 
$139,540.32, but as the increase was figured with the 
$15,255 left out, that should be added, and it makes 
$154,795.32 and that sum should be allowed with in- 



22 

terest from December 5, 1907, till paid, on the same 
principle and according to the same precedent as the 
Walton claim and the Govei'nor McArthur claim. To 
allow General Washington only 3051 acres of public 
lands would in effect, allow his estate but |30,510, 
or ten dollars an acre, when his lands were worth 
but half that sum 108 years ago, and would only 
allow him an increase of $5 per acre in 108 years. 
Then his estate might not realize |10 per acre from 
these lands. That is simply the very highest they 
could hope to realize. The estate might realize very 
much less. The reason we stop increase of the land on 
January 1, 1852, is because at that date, the district 
was closed and therefore the United States should 
not be compelled to allow his estate increase of the 
land except fi'om the date of demand of payment. 

That method relieves the estate from the payment 
of interest after January 1, 1852, to December 5, 
1907, a period of 55 years, and that should be lost 
because there was no demand for payment. 

This plan gives the estate the value of the lands 
on January 1, 1852, and only grants interest from 
demand and in default of payment. There is no 
other case like General Washington's, but there are 
other scrip cases which would claim the benefit of the 
precedent established in the proposed bill. For the 
United States to offer the estate of General Wash- 
ington the sum of $30,000 on a claim of |154,795.32 is 
a disgrace to the United States, an insult to the mem- 
ory of the father of his country. Were we the personal 
representative of the heirs of General Washington, we 
would decline to accept any satisfaction in public 
lands. That form of satisfaction puts a premium on 
the dishonesty of U. S. Senator Kerr, who robbed 



23 

General Washington's estate and lets him get away 
with the Washington lands, while it puts the Wash- 
ington estate in the condition of parties who had ob- 
tained land scrip but never located it, when in fact, 
the Washington estate would have received this land 
.just as the ninth Congress intended he should, if the 
officers of the United States had properly guarded 
against the wrongdoing of U. S. Senator Kerr. 

There is no doubt that Senator Ken*, in making the 
entries and surveys numbered 4847, 4848 and 4862 
over and covering Washington's surveys numbered 
1650, 1765 and 1775, knew that he was covering and 
appropriating General Washington's entries and sur- 
veys made eighteen years previous and the records 
originally kept at Louisville, Ky., and Chillicothe, 
Ohio, now in the Land Office, together with records 
originally filed there, all indicate that Senator Kerr 
knew he was appropriating the lands of General Wash- 
ingtfm's estate, and the United States officers of that 
time could have so known, but permitted the appro- 
priation to be successful. 

^^'hile an Indian woman, a congressman and a state 
governor in a like situation, have been paid in full, the 
lands lost under the same circumstances, for five years, 
Congress has failed to accord the estate of our First 
President the same relief. 

We have prepared a bill such as we think ought to be 
reported as the proper and only satisfaction of this 
claim, in view of the previous adjudged cases and 
precedents and we ask that it be reported by your com- 
mittee and recommended for passage. 

Nelson W. Evans, Portsmouth, Ohio. 

Greenlee D. Letcher, Lexington, Va. 



24 



WASHINGTON BILL. 

62nd Congress Session. 
In the House of Representatives. 

A BILL 

To reimburse the estate of General George Washing- 
ton for certain lands of his in the State of Ohio, 
lost by conflicting grants made under the author- 
ity of the United States. 
Be it enacted by the Senate and House of Repre- 
sentatives of the United States of America in Con- 
gress assembled : 

Sect. 1. That the secretary of the treasury be, and 
is hereby, directed to pay to Colonel Robert E. Lee, 
junior, administrator de bonis non with the will an- 
nexed of General George Washington, the sum of 
|154,795..32, with interest thereon from the fifth day 
of December, nineteen hundred and seven, at 6 per 
centum per annum until paid, the value of three 
thousand and fifty-one acres of land in the Virginia 
military district of Ohio at one time owned by him 
and his estate and improperly taken from his exec- 
utors and devisees by grants issued by the United 
States on junior conflicting surveys. 

Sect. 2. That the act of March third, eighteen 
hundred and ninety-nine, entitled, "An act making 
apj)ropriations for sundry civil expenses of the Gov- 
ernment for the fiscal year ending June thirtieth, 
nineteen hundred, and for other purposes," in so far 
as it required Virginia military land warrants to be 
presented and surrendered to the secretary of the in- 
terior within twelve months from the passage of said 
act or be forever barred and invalid, is hereby re- 
pealed. 



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